This guide is based on UK law. It was written in December 2004 and last updated in September 2008.
Proposals for future reform of the law in this area may, however, see the permitted activities widen in scope in other ways, in recognition of the different formats of learning materials and methods which are being used by those in the education sector in the digital age.
The following restrictions were added to most permitted uses of copyright material:
- permitted activities must be for non-commercial purposes; and
- uses of copyright material require acknowledgement.
Many permitted uses of copyright materials now only apply to activities undertaken for non commercial purposes. However, the amendments do not say what amounts to a 'non-commercial purpose' and ultimately the European Court of Justice will decide this. In the meantime, it is safe to assume that non-commercial does not mean non-profit or not-for-profit and that any activity that has income generation as a direct or indirect end purpose will be considered commercial.
For example, the following activities are likely to be considered commercial:
- courses given by a university or other educational establishment where attendees pay a course fee intended to generate income for the university, such as university summer schools;
- university lecturers speaking at conferences or other events where they are paid a fee for speaking; and
- university research sponsored by a commercial enterprise.
Educational establishments and their staff need to look closely at any of their activities that make money and review their use of copyright materials in these areas.
It may be that some of these activities are covered by licences held with the Copyright Licensing Agency (CLA) or the Newspaper Licensing Agency (NLA). However, some copyright materials are not covered by these bodies. Unpublished materials are an obvious example where permission of the actual copyright owner will be required.
Permitted uses of copyright materials now require more frequent acknowledgement of the title and the author of a work from which copyright material is taken. Generally speaking, this is already standard academic practice. However, this may not always be the case, depending on the type of work or the use to which it is put.
Educational establishments therefore need to undertake rigorous checks to ensure that all copyright material is sufficiently acknowledged where required.
The permitted acts
The amendments made to permitted acts which are most relevant to educational establishments are:
- copying by educational establishments
- copying by librarians
The provisions permitting fair dealing of certain copyright works for the purposes of research have been narrowed.
Research must now be of a non-commercial purpose and the copyright work must be accompanied by a sufficient acknowledgement.
No acknowledgement is required where it would be impossible for reasons of practicality or otherwise.
Therefore, the use of copyright material in, for example, university research which is either commercially sponsored or conducted with a view to ultimate commercialisation of an invention is no longer permitted without the express permission of the copyright owner. It is the intended purpose of the research at the time of making use of the copyright material that is relevant. Use of copyright material in research that ultimately results in the commercialisation of an invention will only require permission if that was the intention at the time of copying the material.
Copying by educational establishments
Educational establishments have been permitted to make reprographic copies of passages from published works for the purposes of instruction, subject to certain restrictions. For example, no more than 1% of any work may be copied in any quarter, and copying is not permitted if licences authorising the copying in question are available and the person making the copies knew or ought to have been aware of that fact. Reprographic copying is now subject to the added restrictions that the instruction must be for a non commercial purpose and the work must be accompanied by a sufficient acknowledgement.
Copying by librarians
Generally, where a person was permitted to use copyright material for the purposes of research, a librarian in a not-for-profit library was entitled to supply that person with a copy of that material provided that the librarian was satisfied that the copy was supplied for research purposes.
Librarians protected themselves from liability by requiring the person making the request to sign a declaration confirming the purpose of the copying. Now, the librarian must be satisfied that the research is for a non-commercial purpose and must consider any requested declaration accordingly.
Previously, copying of copyright material in the course of, or preparation for, instruction was permitted in limited circumstances.
The copying had to be done by a person giving or receiving the instruction and could not be by means of a reprographic process. This was intended to permit the copying in manuscript by a teacher or a student of copyright material either in class or in preparation for it.
Now, the permitted use is subject to additional limitations. Either:
- the instruction must be for non-commercial purposes and the copyright material sufficiently acknowledged; or
- the copyright material must be sufficiently acknowledged and already available to the public and the use made of it must be fair.
As the permitted copying cannot be by reprographic means, this exception to copyright infringement has always been narrow in any case. It is difficult to imagine it generally applying other than in the schoolroom by oral use or use of the blackboard / whiteboard and subsequent copying in student notes. In this scenario, the further limitations may not be too onerous, although teachers and students will need to be mindful of the requirement for sufficient acknowledgement.
Previously, copyright was not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to candidates or answering questions. This is now subject to the further requirement that any question be accompanied by a sufficient acknowledgement unless this would be impossible for reasons of impracticality or otherwise.
Quotations from authors forming part of exam questions need to be acknowledged. This may be standard practice. However, exam questions themselves are usually copyright material. Do the original authors of exam questions need to be acknowledged when those questions are used subsequently (either in the same or an amended form)? Usually not.
Acknowledgement is not required where a copyright work has been published anonymously or, with an unpublished work, it is not possible for a person to ascertain the identity of the author after a reasonable enquiry. The author of exam questions is usually not published. However, there will conceivably be situations where this will not be the case and those setting exams ought to be aware of this new requirement. In the case of public examination papers, examination boards handle applications for permission to copy exam papers.
- Audit activities to identify those which may be considered non-commercial and the use of copyright materials in those activities.
- Check existing licences and permissions from licensing bodies such as the CLA , NLA and ERA to see whether the current use of copyright materials is already permitted.
- If in doubt, speak to the relevant licensing body – licences may need to be amended, or new licences entered.
- For copyright material not covered by licensing bodies (e.g. examination papers and unpublished works), consider whether permissions from individual copyright owners are needed.
- Inform staff about more rigorous acknowledgement requirements when using copyright materials.
In December 2006, Andrew Gowers (a former editor of the Financial Times) published the Gowers Review of Intellectual Property. This was an independent review, conducted at the request of the government, which considered the current protection of intellectual property rights in the UK and the appropriateness of those protections in the digital age.
The report made a number of recommendations which will have an impact on libraries, schools and universities. In particular, the Gowers Review recommended that the fair dealing exception for the purposes of non commercial research should be extended to cover all forms of content, including for the first time sound recordings and films. It also recommended that, by 2008, copying by educational establishments should be extended to permit passages from works to be made available to students by email or via a virtual learning environment ("VLE"), so that works can be communicated over secure computer networks to allow for distance learning (subject to the same restriction that this will only be permitted where no licensing scheme is in place for their use). It also proposes a similar extension to allow the communication of such passages using interactive whiteboards.
There are also proposals to permit libraries to copy the master copy of all types of work (including sound recordings and films) in permanent collections for archival purposes and to allow further copies to be made from the archived copy to mitigate against subsequent wear and tear. In addition, the Gowers Review recommends a further amendment for libraries to be able to format shift archival copies to ensure records do not become obsolete.
At the time of writing, the UK Intellectual Property Office has conducted its first round of consultations on these recommendations (which closed in April 2008). It is currently scoping out the second consultation stage, which the intention of inviting comments from interested parties later on in 2008.